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New California Proposed Opinion Requires eDiscovery Competence – eDiscovery Trends
If a new proposed opinion in California is adopted, attorneys in that state had better be sufficiently skilled in eDiscovery, hire technical consultants or competent counsel that is sufficiently skilled, or decline representation in cases where eDiscovery is required.
The California State Bar Standing Committee on Professional Responsibility & Conduct has released Proposed Formal Opinion Interim No. 11-0004, which is designed to establish an attorney’s ethical duties in the handling of discovery of electronically stored information. As stated on the first page of the opinion:
“Attorney competence related to litigation generally requires, at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, i.e., the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a given matter and the nature of the ESI involved. Such competency requirements may render an otherwise highly experienced attorney not competent to handle certain litigation matters involving ESI. An attorney lacking the required competence for the e-discovery issues in the case at issue has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues can also result, in certain circumstances, in ethical violations of an attorney’s duty of confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence.”
The proposed ethics opinion includes a hypothetical situation in which a lawyer agrees to opposing counsel’s search of his client’s database using agreed-upon terms with that lawyer mistakenly thinking that a clawback agreement offered by opposing counsel is broader than it is, and will allow him to pull back anything, not just protected ESI, so long as he asserts it was “inadvertently” produced. Ultimately, the lawyer learns the search produced privileged information and also showed that his client had deleted some potentially relevant documents as part of a regular document retention policy, breaching his duty of competence and his duty to maintain client confidences and to protect privileged information. Oops!
The remainder of the proposed eight page opinion discusses those very attorney duties regarding ESI, including the duty of competence and the duty of confidentiality.
The committee is requesting comments on the proposed opinion through June 24. For more information and where to direct comments, click here.
So, what do you think? Are ethics opinions like this needed to establish competency requirements for attorneys? Please share any comments you might have or if you’d like to know more about a particular topic.
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